Md. police records still costly, hard to get despite reforms, lawsuits say

Just over a year after new laws took effect in Maryland to increase access to police misconduct and internal affairs records, a host of public interest groups and news organizations are now asking the courts for help forcing government agencies to comply.

While the laws passed in the 2021 legislative session were intended to increase transparency and accountability over government actors, most especially police departments, the implementation has been inconsistent statewide, groups suing for more open access to records have asserted. They say agencies are charging exorbitant fees for public records, missing mandated deadlines or denying requests altogether.

Several cases in courts across the state seek to clarify the decades-old Maryland Public Information Act (MPIA) and firm up the rules surrounding Anton’s Law, which went into effect last October. Anton’s Law was created to expand access to complaints of police misconduct and is named for Anton Black, a Black teenager who died after an encounter with police in Greensboro, Md. The bill was passed alongside other reform measures, including the repeal of the Law Enforcement Officers Bill of Rights and the establishment of mandated local police accountability boards — all part of a historic package approved after the national social justice uprising over the murder of George Floyd by Minneapolis police.

But those reform efforts are now facing challenges statewide as the public, police departments and their unions navigate the new laws and, in some instances, take their disagreements to the courts.

One case, pending before the Maryland Supreme Court, centers around a fight over a $245,000 bill the Baltimore Police Department sent to Open Justice Baltimore over a request for records related to officer misconduct complaints and internal affairs investigations. Open Justice Baltimore had asked for a fee waiver under MPIA’s public interest clause.

Oral arguments in the case are scheduled for January 6, and three separate amicus briefs have been filed with the court by the Maryland Public Defender’s Office, three civil rights organizations and the Reporters Committee for Freedom of the Press.

“This particular case isn’t a one-off. This is part of a trend,” said Shannon Jankowski, a staff attorney for the Reporters Committee, which filed its brief on behalf of 15 news organizations. “We want to ensure that the court understands that this fee waiver process is critically important.”

Open Justice Baltimore, which works with community groups and journalists to create open-source databases about the city’s public officials, initially filed its request in 2019. The Baltimore Police Department did not respond in a timely manner, Open Justice Baltimore says, so the organization sued the agency and asked a judge to compel authorities to release the records. The department then told Open Justice Baltimore that they’d have to pay more than $1.4 million dollars to get the records — a fee that was later reduced to $245,000.

The police department denied the organization’s request for a fee waiver, in part, because they said the requested documents “would not likely contribute significantly to public understanding of the operations” of the agency, according to court documents.

Open Justice Baltimore turned to the courts again. The Maryland Court of Special Appeals, the state’s second highest court, ruled in the organization’s favor, calling the fee-waiver denial arbitrary and capricious.

The police department appealed to the Maryland Supreme Court, which agreed to take up the case.

Oral arguments next month will likely turn on the meaning of “public interest” as outlined in state law.

The Baltimore Police Department has argued that its record custodians are overburdened by thousands of record requests each year and are tasked with doing the tedious work of finding, reviewing and redacting the records. That work, the department contends in court filings, takes time and resources — the cost for which must come from somewhere.

The department said in court documents that it denied Open Justice Baltimore’s request for a fee waiver because the desired records were for an “unspecified project” and therefore absorbing the costs “would not be a responsible use of taxpayer funds.”

The department’s argument hinges on the language used in the MPIA, which states that a records custodian “may” waive a fee “if” free disclosure of the records would be in the “public interest.” There is no requirement to waive the fees, the police department claims.

But in filings to the Maryland Supreme Court, Open Justice Baltimore challenged both of those arguments — as did the three entities that filed amicus briefs supporting the organization.

The Maryland Public Information Act that governs the release and availability of state records, crafted after the federal Freedom of Information Act, was first enacted in 1970, and later amended in 1982 to provide further clarity over who should take on the cost of producing records. The public interest clause was introduced as a way to distinguish records collection in the interest of the public and records collection for corporate entities trying to get information on competitors business operations.

“This is the chance for the Supreme Court of Maryland to reset, to make clear that the MPIA means what it says,” said Adam Abelson, a partner at Zuckerman Spaeder who is representing the ACLU of Maryland, Washington Lawyers Committee for Civil Rights and Urban Affairs and the Public Justice Center. “Public interest organizations seeking public records for public purposes are entitled to fee waivers.”

In the ACLU of Maryland’s amicus brief, attorneys cited data showing that federal agencies rarely charge fees for producing public records. In fact, according to a report by the Justice Department, less than 0.4 percent of the costs related to producing federal public records are paid for through fees collected from the requester.

The amicus brief filed by the Reporters Committee for Freedom of the Press focuses in on the financial burden that high fees and court costs can create for the country’s increasingly smaller press corps. News organizations serve a public good, the brief argues, but high costs for public records might prohibit journalists’ ability to carry out that work.

The brief offers an observation about the way government agencies and police departments in Maryland have responded since the passage of Anton’s Law. Because of lagging policies, resources and staffing to keep up with the increased volume of requests, agencies are not complying with the timelines and fee guidance outlined in the law, said Jankowski, the Reporters Committee staff attorney.

“The courts are really important instruments to help with those growing pains and to ensure… that legislative intent is followed,” Jankowski said.

Open Justice Baltimore told the court their case has only increased in significance since 2019, also pointing to Maryland’s recent reform efforts.

“Relevant law has continued to develop over the life of this case,” the organization’s attorneys wrote in a brief to the state’s high court. “The Maryland General Assembly has explicitly recognized the public interest in the disclosure of police misconduct records. The outcome of this case will determine BPD’s ability to undermine this new legislative mandate intended to make police misconduct more transparent.”

Anton’s Law and MPIA are being tested in other court cases across the state, including a lawsuit filed in March by the ACLU of Maryland against the Calvert County Sheriff’s Office after the agency demanded a $12,000 fee for records of strip and body cavity searches. The public records request came after complaints from local residents alleging invasive searches of Black people, according to the ACLU.

Open Justice Baltimore filed a separate lawsuit in July against Baltimore city’s law department, accusing the agency of ignoring state public records law and withholding documents. Two journalists are also plaintiffs on the suit, and the group is represented by Baltimore Action Legal Team — a civil rights nonprofit that has made several other MPIA legal challenges.

An early test of Anton’s Law is playing out in Montgomery County, where a police officer and his union are attempting to block public access to his personnel file by arguing that it would violate his 14th Amendment due process rights. The officer’s files were requested by a woman who he had pulled over more than a decade ago. One day before the county planned to hand over the records, the officer and his union sued to stop the disclosure.

The Reporters Committee for Freedom of the Press and The Washington Post filed a motion to intervene in the case in September.